With the introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), it is crucial to examine how the law on sanction under crpc and BNSS continues to uphold procedural safeguards for public servants.
NEW DELHI: One of the most universally accepted principles of criminal law is that
“an accused is presumed innocent until proven guilty”
In India, this principle is reflected in various procedural safeguards under the Code of Criminal Procedure, 1973 (“the Code”). These safeguards operate at different stages of criminal proceedings to prevent misuse of the legal system against the accused.
For instance, under Section 190 of the Code,
“a Magistrate must apply judicial mind before taking cognizance of an offence. Similarly, while issuing summons under Section 204, the Magistrate must ensure that the accused is not subjected to trial without sufficient material evidence”
Further, under Section 202,
“a Magistrate is required to conduct an inquiry if the accused resides beyond their jurisdiction, preventing misuse of the law to harass individuals residing outside the Magistrate’s territorial jurisdiction”
Additionally, in cases involving public servants, Section 197 of the Code provides an
” additional safeguard by requiring prior sanction before initiating prosecution for acts committed in the discharge of official duties”
With the introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), it is essential to analyze the law on sanction under Section 218 of the Code, its shortcomings, and how BNSS attempts to address these issues.
Sanction: Object and Scope of Section 197 of the Code
The primary objective of Section 197 is to
“protect public servants from frivolous or vexatious criminal proceedings for actions undertaken in their official capacity”
This provision first appeared in the Code of Criminal Procedure, 1898 (“1898 Code”). Its constitutional validity was upheld by the Supreme Court in Matajog Dobey v. H.C. Bhari (1955 SCR (2) 925) wherein the Court reasoned that public servants require special protection as they are engaged in official duties, which may expose them to legal action unfairly.
The protection under Section 197 is limited. It applies only when the alleged act is reasonably connected with the discharge of official duty and is not merely a pretense for committing an unlawful act. For instance, a government doctor’s negligence in treating a patient may require prior sanction for prosecution, whereas theft committed by the same doctor would not. In Gill v. R., the Privy Council laid down the test to determine whether a public servant acted in their official capacity:
“The test may well be whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office.”
The Supreme Court in Matajog Dobey further refined this test, holding that there must be a reasonable connection between the alleged act and the discharge of official duty. Similar reasoning was adopted in B. Saha v. M.S. Kochar, where the Court emphasized that the alleged offence must be committed in official capacity or under the color of office.
Over time, the scope of Section 197 has evolved through various rulings. Courts have held that
“Sanction is generally not required for offences like criminal breach of trust (Sections 406, 409 IPC) and forgery (Sections 467, 468, 471 IPC) when committed by public servants for personal gain, as these acts lack a reasonable nexus with official duties.”
READ MATAJOG V. DUBEY:
Stage at Which Sanction is Considered
The question of when sanction should be considered has led to judicial debate. Initially, it was argued that sanction should be examined at the stage of cognizance. However, in Matajog Dobey, the Supreme Court observed
“that relevant facts may emerge later during police or judicial inquiry. Courts have since adopted a flexible approach, permitting sanction to be considered at different stages of proceedings”
In cases where the alleged act is inherently linked to official duties, a Magistrate cannot take cognizance in the absence of prior sanction. For example, in D.T. Virupakshappa v. C. Subash, the Supreme Court
“quashed proceedings for want of sanction where an accused police officer allegedly assaulted the complainant during an investigation, as the act was intrinsically related to his official duty.“
The delay caused by sanction-related inquiries often results in prolonged trials, undermining the accused’s right to a speedy trial. Courts have attempted to balance this issue by allowing Magistrates to either stay proceedings until sanction is obtained or discharge the accused, permitting the complainant to refile after securing sanction.
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Prosecution of Public Servants Under BNSS
Section 218 of BNSS corresponds to Section 197 of the Code. While its language largely remains the same, a significant addition is the first proviso to Section 218(1), which mandates that a sanction request must be decided within 120 days, failing which it will be deemed granted. This addresses the issue of delays by ensuring time-bound decision-making.
Another key change is introduced under Section 223 of BNSS (equivalent to Section 200 of the Code). It introduces safeguards at the pre-cognizance stage, including:
- Opportunity of hearing for the accused before cognizance is taken.
- Mandatory report from the accused’s superior officer before prosecuting a public servant.
These provisions aim to prevent misuse of criminal law against public servants and reduce frivolous complaints. By ensuring that sanction is considered at the pre-cognizance stage, BNSS seeks to minimize unnecessary litigation and judicial burden.
Recent Rulings
In recent times, the Supreme Court of India has delivered several significant judgments elucidating the application of Section 197 of the Code of Criminal Procedure (CrPC), which mandates prior sanction for prosecuting public servants for actions performed in the discharge of their official duties. Notable among these are:
- Principles Governing Sanction Requirement – Union of India v. Ramesh Kumar (2024): In a judgment from December 2024, the Supreme Court summarized twelve guiding principles related to Section 197 CrPC. The Court underscored that public servants cannot be prosecuted for acts performed in the discharge of their official duties without prior government sanction. This decision provides clarity on when an alleged act can be considered as part of official functions.
- Limits of Protection Under Section 197 CrPC – Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors. (2024 INSC 979): The Supreme Court addressed the applicability of Section 197 concerning the requirement of sanction for prosecuting public servants. The judgment clarified the extent to which public servants can claim protection under this section when accused of committing offences outside the scope of their official duties.
- Reaffirmation of Mandatory Prior Sanction – Gurmeet Kaur v. Devender Gupta (2024): The Supreme Court reaffirmed that prior sanction under Section 197 CrPC is mandatory for prosecuting public servants for actions factually tied to their official duties. The Court emphasized the necessity of a “reasonable nexus” between the act and official duty to invoke this protection.
- Denial of Immunity for Malicious Acts – Rajesh Kumar v. State of Uttar Pradesh (2024): The Supreme Court held that public servants, including police officers, cannot claim protection under Section 197 CrPC for actions such as lodging bogus complaints. The Court clarified that such acts, lacking a connection to official duties, do not warrant immunity under this provision”
- Station House Officer, CBI vs. B.A. Srinivasan ((2020) 2 SCC 153): In this Judgement , the Court observed that
- “the protection of sanction under Section 197 CrPC is not available when officials use their positions as a mere cloak for unlawful gains”
- The Court stated that such protections are intended for honest and sincere officers, but they are not unqualified and do not shield actions performed under the guise of official duty for personal benefits.
The right to a fair trial, as guaranteed under Article 21 of the Constitution, applies equally to victims and accused persons. The requirement of sanction under Section 197 of the Code plays a crucial role in protecting public servants from unwarranted prosecution, thereby upholding this right.
The BNSS has made significant improvements in this regard by:
- Introducing time-bound sanction decisions (120-day rule under Section 218);
- Allowing pre-cognizance hearings to filter out frivolous complaints;
- Reducing judicial delays and burden by ensuring sanction is considered at an early stage.
However, these changes also raise certain unresolved questions:
- Does the accused have the right to cross-examine witnesses at the pre-cognizance stage?
- How much reliance can be placed on reports obtained under Section 223(2)(b) when the author is not examined?
- What is the relevance of an inquiry under Section 225 of BNSS (equivalent to Section 202 of the Code) in light of the changes?
While BNSS attempts to address long-standing issues related to sanction, its effectiveness will depend on judicial interpretation and implementation. The coming years will determine whether these reforms strike the right balance between protecting public servants from harassment and ensuring accountability for misconduct.
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